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Americans have forgotten what 'treason' actually means — and how it can be abused

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Americans have forgotten what 'treason' actually means — and how it can be abused

We are willfully turning a blind eye to the sordid history of treason that led to its unique treatment in the U.S. Constitution.

by Steve Vladeck / Feb.16.2018 / 5:10 PM ET

Those who fail to study history are doomed to repeat it. Jonathan Ernst / Reuters file

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In a nationwide survey released on Wednesday, Public Policy Polling asked Americans “What do you think is more treasonous: coordinating with Russia to win a presidential election, or not standing and applauding for Donald Trump?” Whatever one’s political beliefs or disposition toward the current president, the correct answer should have been “neither.” (Instead, 69% said it was the former.)

Among other things, the mere existence of this question underscores the need for a long overdue moratorium on the blithe characterization of things as “treason”— and for all of us to be far more careful when using that term to describe conduct that we believe is some combination of reprehensible, criminal and perhaps even impeachable.

Treasonous acts may be criminal, but criminal acts are almost never treason. As Article III, Section 3 of the Constitution specifies, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” The Founders went out of their way to define treason narrowly because they knew how it had been repeatedly abused in the past.

The Founders went out of their way to define treason narrowly because they knew how it had been repeatedly abused in the past.

For much of the pre-revolutionary period in England, the accusation was a means of suppressing political dissent and punishing political opponents for crimes as trivial as contemplating a king’s future death (what was known as “compassing”), or speaking ill of the king (“lèse majesté”). King Henry VIII even had two of his six wives executed for alleged adultery on the ground that such infidelity was, of itself, “treason.” The English abuse of treason was anathema to a nascent republic dedicated to the rule of law and the right of peaceful dissent.

Thus, to ensure that treason could not likewise be co-opted for political or personal purposes, the Constitution’s drafters not only defined it precisely (it’s the only offense specifically defined in that document), but also specified that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” (Article III also limits the punishment that can be inflicted, even with a conviction.)

As a federal appeals court explained in 1986: “[t]he reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.” As a result, treason is, in some respects, the most specific crime in our legal system — and certainly among the hardest to prove. It’s also the only crime that can be used as the basis for expatriating a natural-born American citizen.

Because of this history, a lot of things that might seem or feel like treason to casual observers do not, in fact, come close. In this context “enemies,” for example, must be countries against which Congress has formally declared war or otherwise authorized the use of force. (So contemporary Russia is out, whatever role it may have played in the 2016 election.) Even during the height of the Cold War, when Julius and Ethel Rosenberg were tried, convicted and executed for conveying nuclear secrets to the Soviet Union, the charge against them was espionage, not treason.

And “levying war” against the United States requires active and direct participation in an armed conflict, not just “un-American” speech or insufficient patriotism. Notably, and contra claims leveled against Edward Snowden or Hillary Clinton, it also do not mean the mishandling of classified information.

By those metrics, it should be obvious why it is not treason to either refuse to applaud the president or to collude with Russia to influence the outcome of a presidential election. To be sure, the latter, if proven, is light-years worse than the former. But treason is not defined by the gravity of the offense; it’s a crime indicating the clear support our enemies during wartime, period.

Treason is not defined by the gravity of the offense; it’s a crime indicating the clear support our enemies during wartime, period.

To be sure, there’s no law against the colloquial misuse of a legal term — nor should there ever be. But the more we use the t-word to refer to conduct that doesn’t remotely resemble the constitutional definition, the more we are — willfully — turning a blind eye to the sordid history of treason that led to its unique treatment in the U.S. Constitution.

And as the Spanish philosopher George Santayana reminds us, those who fail to study history are doomed to repeat it. Perhaps that’s why 20% of the respondents to the Public Policy Polling survey also answered that they do believe that failing to stand for — and applaud — the president is treason. That’s not a treasonous viewpoint, but it certainly is an un-American one.

Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).